State and Commonwealth governments, through the agency of regulators, grant exploration and mining companies rights to occupy and operate on land to extract and produce minerals. At the same time, these governments play an important role in the preservation of the environment, the protection of community rights, and the advancement of occupational health and safety.
Therefore, these environmental, safety and social considerations are built into the agreements that regulators, and by proxy, governments make with exploration and mining companies. It is important to understand your compliance obligations at the mine site, as well as to know when and how to report to regulators on your performance and plans.
Because of the complexity of the requirements imposed upon mining and resources businesses, and the financial and reputational risk associated with a misstep, many exploration and mining companies rely upon experienced consultants to approach these limitations or obligations with care. The continuity and longevity of projects can depend on sound management of tenement obligations.
Below, we explore three key obligations more closely.
Exploration and mining companies have a responsibility to minimise their impact on the environment, which is embedded in environmental and mining law across all jurisdictions of Australia. Compliance with the relevant legislation is a necessary precursor to gaining the tenement to operate, and maintaining the tenement.
Regulation of environmental impact can occur at both a state or territory and federal level, and it may pertain to various elements of an exploration and mining company’s potential environmental impact, and how this is managed. Key areas of concern may include the impact on flora, fauna, landscape, environment, and water resources, including groundwater.
As a precursor to commencing mining or exploration activities, it is commonly a requirement of Australian and international mining and resources companies operating within Australia, to develop an assessment document, outlining the anticipated environmental impact.
This document is typically available for public consultation and therefore feeds into the stakeholder relations and public relations of a mining and resources company. It is approved and the title is granted conditionally, with conditions designed to minimise the environmental impact of the mining and resources company.
Many will rely on the services of an experienced mining lawyer, tenement consultant or environmental consultant in this space. A professional organisation like Hetherington can assist with approvals, rehabilitation compliance and auditing, closure management, environmental and planning advice, environment impact assessments, and ESG strategy.
Health and safety requirements on a mine site are governed by the statutory bodies for occupational health and safety, which are state and territory based. Mining and exploration are unique fields of industry and often the policies and regulations in this area differ from more general, lower or different-risk workplaces. Safety regulations specific to the Australian mining and resources sector may pertain to the operation of railways, transport, electricity, explosives, or aerodromes.
Health and safety breaches can carry significant consequences, including financial penalties. They can also be bound up in the granting of the tenement. If a business fails to exercise its duty of care towards all those on their work site, most notably workers, then the risk to the business – financially and reputationally – may be significant.
To mitigate this risk, it is recommended that you consult an exploration and mining law consultant within these areas, who are familiar with the intricacies of mining-specific safety regulation, and how occupational health and safety relates to the tenement.
Following the Mabo decision, the Australian government introduced the Native Title Act which established protections of Aboriginal and Torres Strait Islander rights to land. This act exists to ensure that the mining operator follows a compliant course of action as it pertains to native title obligations.
The act imposes a process of negotiation upon mining operations, whereby native title holders and tenement holders must negotiate before operations may commence. Financial or other compensation, employment opportunities, or protection of areas of cultural significance may be built into the subsequent agreements. Failing a successful agreement, the process may require adjudication.
These obligations are regulated, but how well they are followed also impacts one’s social licence to operate. This is a highly important consideration, because, without this social licence, other barriers to effective mining and exploration activities may arise.
An experienced consultant such as Hetherington can assist with initial landowner consultation, drafting and negotiation of agreements, representation during mediation and arbitration, expedited procedure objections, and Aboriginal Heritage and Native Title advice.
As may be noted from above, the obligations that are connected with an exploration or mining licence can be highly complex, which is why many operators outsource to a mining and resources sector professional who can provide advice, strategic direction or carry out compliance. For more information, browse our website or contact Hetherington today.